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HomeMy WebLinkAboutGordon Huether & Partners Inc; 2025-01-28; PSALCA-24076CAPSALCA-24076CA Page 1 City Attorney Approved Version 5/22/2024 AGREEMENT FOR PUBLIC ARTWORK DESIGN SERVICES FOR VETERANS MEMORIAL PARK PUBLIC ART PROJECT CAPITAL IMPROVEMENT PROGRAM PROJECT NO. 4609 GORDON HUETHER & PARTNERS, INC. THIS AGREEMENT is made and entered into as of the ________ day of __________, 2025, by and between the City of Carlsbad, California, a municipal corporation ("City") and Gordon Huether & Partners, Inc., a California corporation, ("Contractor") (collectively, the “Parties”). RECITALS A. City requires the professional services of an artist that is experienced in working in the public art field to design the artwork for the Veterans Memorial Park Public Art Project, Capital Improvement Program Project No. 4609, located at the future Veterans Memorial Park site near the intersection of Faraday Avenue and Cannon Road, in Carlsbad, California. B. Contractor has the necessary experience in providing professional services and advice related to developing site-specific artwork for the project. C. Contractor has been selected, pursuant to procedures identified in City’s Art in Public Places Program, adopted by the Carlsbad City Council, to design the artwork with funds allocated for this purpose. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A," which is incorporated by this reference in accordance with this Agreement’s terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor’s profession practicing in the Metropolitan Southern California area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of two (2) years from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional two (2) year terms or parts thereof. Extensions will be based upon a satisfactory review of Contractor’s performance, City needs, and appropriation of funds by the City Council. The Parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 28th January PSALCA-24076CA Page 2 City Attorney Approved Version 5/22/2024 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed ninety-five thousand dollars ($95,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. Incremental payments, if applicable, should be made as outlined in attached Exhibit "A." 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor’s own way as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor’s subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor’s work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor Performance. Contractor agrees to defend (with counsel approved by the City), indemnify, and hold harmless the City and its officers, elected and appointed officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 PSALCA-24076CA Page 3 City Attorney Approved Version 5/22/2024 and only to the extent required by Civil Code Section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction. Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault. The Parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. Intellectual Property. Contractor shall indemnify, defend (with counsel approved by the City), and hold harmless City and its officers, elected and appointed officials, employees and volunteers from and against any and all third-party claims, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) incurred or suffered by City which directly relate to or directly arise out of an alleged or actual violation or infringement of any third-party intellectual property rights from City’s authorized use of the artwork derived from the Services. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor’s indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor’s sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. If the use of an automobile is involved for Contractor’s work for City, $2,000,000 combined single-limit per accident for bodily injury and property damage. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 PSALCA-24076CA Page 4 City Attorney Approved Version 5/22/2024 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 If Contractor maintains higher limits than the minimums shown above, the City requires and will be entitled to coverage for the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage will be available to the City. 10.2.4 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 PSALCA-24076CA Page 5 City Attorney Approved Version 5/22/2024 documents, proceedings, and activities related to the Agreement for a period of four (4) years from the date of final payment under this Agreement. 13. [RESERVED] 14. COPYRIGHT ACQUISITION AND WAIVER OF MORAL RIGHTS 14.1 Definitions. The Parties agree to the following definitions: 14.1.1 “Artwork” means the original visual work of art created by Contractor for the Veterans Memorial Park Public Art Project (Capital Improvement Program Project No. 4609) pursuant to this Agreement, and to be located at the future Veterans Memorial Park site near the intersection of Faraday Avenue and Cannon Road, and as further described in Exhibit “A.” 14.1.2 “Copyright” means the rights granted in the Artwork as defined and set forth in the U.S. Copyright Act of 1976, 17 U.S.C. §101 et seq., as amended, to authors of original works of authorship fixed in a tangible medium of expression, including but not limited to “visual works of art” as defined in section 17 U.S.C. §101. 14.1.3 “VARA” means the Visual Artists Rights Act of 1990, (17 U.S.C. § 106A, et seq. and 113(d)), as amended, which confers upon authors of works of visual art several types of attribution and integrity rights, including but not limited to the right to prevent any intentional distortion, mutilation, or other modifications to his/her/their visual artwork, and to prevent the destruction of a visual artwork of recognized stature. 14.1.4 “CAPA” means the California Art Preservation Act of 1979 (Cal. Civil Code §987 et seq.), as amended, which confers certain rights (not pre-empted by VARA) to artists, of works of fine art (original paintings, sculptures, drawings or original works of art in glass, of recognized artistic quality), including but not limited to the right to prohibit the intentional physical defacement, mutilation, alteration, or destruction of a work of fine art by any person or entity who possesses or owns the fine art. 14.1.5 “Moral Rights” means any rights of Contractor in the Artwork that include the rights under VARA or CAPA or any similar rights under any body of state, federal, or international law relating to Contractor’s rights in the integrity of the Artwork or right of attribution relating to the Artwork. 14.2 Copyright Acquisition. Contractor hereby irrevocably sells, assigns, transfers, and conveys to City, and City hereby accepts, all of Contractor’s right, title, and interest in and to all (i) copyrights in the Artwork, whether registered or unregistered, arising under any applicable law of any jurisdiction throughout the world or any treaty or other international convention; (ii) all rights of any kind whatsoever of Contractor accruing under any copyright registration or application for copyright registration for the Artwork and all issuances, extensions, and renewals thereof (ii) all licenses and similar contractual rights or permissions, whether exclusive or nonexclusive, related to the Artwork; (iii) all future royalties, fees, income, payments, and other proceeds for the Artwork; (iv) all rights to claims and causes of action with respect to any of the foregoing, including all rights to and claims for damages, restitution, and injunctive and other legal and equitable relief for future infringement, misappropriation, violation, breach, or default; (v) all other rights, privileges, and protections of any kind whatsoever of Contractor for the Artwork accruing under any of the foregoing provided by any applicable law, treaty, or other international convention throughout the world. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 PSALCA-24076CA Page 6 City Attorney Approved Version 5/22/2024 Contractor hereby authorizes the Register of Copyrights in the United States Copyright Office to record and register this copyright assignment upon request by City. Contractor shall take such steps and actions and provide such cooperation and assistance to City and its successors, assigns, and legal representatives, including the execution and delivery of any affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documents, as may be necessary to effect, evidence, or perfect the assignment of the copyright in the Artwork to City. Without limiting or waiving the foregoing, City agrees to make its best effort identify Contractor as the designer of the Artwork. 14.3 Title. For clarity, if the Artwork proceeds to fabrication, upon completion and installation of the Artwork, or any portion of it, City will own title to and control over the Artwork. 14.4 Waiver of Statutory Moral Rights. Contractor acknowledges and understands that if the Artwork proceeds to fabrication, the subsequent installation of the Artwork may be subject to destruction, distortion, mutilation, or other modification due to its removal by City or its officials, officers, employees, agents, or representatives. Further, in the event that any element of the Artwork constitutes a public safety hazard, City has the right to remove the element posing the public safety hazard. Contractor irrevocably waives any and all Moral Rights in the Artwork, including but not limited to any rights of Contractor under VARA or CAPA, which waiver shall include but not be limited to: i. The right to prevent any distortion, mutilation, removal, or other modification of any kind of the Artwork, for any purpose or use of any kind, and whether or not the distortion, mutilation, removal, or modification is intentional or prejudicial to the Contractor’s honor or reputation, and whether or not the Artwork is one of recognized stature. ii. The right to prevent the use of Contractor’s name as the author of the Artwork in the event of a distortion, mutilation, or other modification of the Artwork which would be prejudicial to Contractor’s honor or reputation. iii. The right to claim authorship of the Artwork and to prevent the use of Contractor’s name as the author of any work of visual art which Contractor did not create. This waiver includes a waiver of any claim that the destruction, modification, or removal of the Artwork constitutes a “taking” (inverse condemnation) of property under state or federal law. Contractor, and Contractor’s agents, heirs, successors and assigns further agree not to attempt to defeat this waiver by cooperating, encouraging or assisting any organization which seeks to bring an action under VARA or CAPA. Any contracts or written agreements between the Contractor and Contractor’s subcontractors or other artists contributing to the Artwork shall include a waiver of the subcontractors’ or other artists’ CAPA or VARA rights. In the event City alters, modifies, or otherwise changes the Artwork, City agrees to grant Contractor the right to remove any plaques, signage, or any other physical item identifying Contractor as the designer of the Artwork. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 PSALCA-24076CA Page 7 City Attorney Approved Version 5/22/2024 15. WARRANTIES 15.1 Warranty of Title. Contractor represents and warrants that Contractor is the owner of the design, renderings, concept, or any other intellectual property created as part of the Contractor’s Services and has the authority to enter into this Agreement and to grant rights to the City as set forth in this Agreement. Contractor also warrants that the Services are not now and will not be subject to claims of ownership, lien, security interest, encumbrance, or intellectual property infringement, including but not limited to copyright and trademark infringement, under any state or federal law. 15.2 Reasonable Maintenance Warranty. Contractor represents and warrants that reasonable maintenance of the artwork will not require procedures in excess of those described in the maintenance recommendations submitted by Contractor to City along with the artwork design. 15.3 Design Warranty. Contractor represents and warrants Contractor will design the artwork to withstand outdoor coastal weather conditions specific to the City, including but not limited to, temperature fluctuations, precipitation, wind, moisture, and any other typical environmental elements. Further, Contractor represents and warrants that all designs, renderings, and concepts created as part of the Services are unique, original, not previously existing or duplicated, and will not be sold elsewhere. 15.4 Notice to Cure. City shall give notice to Contractor of any observed warranty breach with reasonable promptness. The Contractor will at the request of City, and at no additional cost to City beyond the compensation identified in this Agreement, promptly cure the breach of any such warranty. 15.6 Remedies. Contractor will indemnify, defend, and hold harmless City from and against any losses or damages arising from or relating to any breach of Contractor’s representations or warranties hereunder. This section in no way limits or waives the Indemnification Section of this Agreement. 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: For Contractor: Name Craddock Stropes Name Gordon Huether Title Cultural Arts Manager Title Project Manager / Chief Executive Officer Dept Library & Cultural Arts Address 1821 Monticello Road CITY OF CARLSBAD Napa, CA 94558 Address 1775 Dove Lane Phone 707-255-5954 Carlsbad, CA 92011 Email gh@gordonhuether.com Phone 442-339-2726 Email craddock.stropes@carlsbaca.gov Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 8 17. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests as required in the City of Carlsbad Conflict of Interest Code. Yes ☐ No ☒ 18. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contract, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 19. CALIFORNIA AIR RESOURCES BOARD (CARB) ADVANCED CLEAN FLEETS REGULATIONS Contractor’s vehicles with a gross vehicle weight rating greater than 8,500 lbs. and light-duty package delivery vehicles operated in California may be subject to the California Air Resources Board (CARB) Advanced Clean Fleets regulations. Such vehicles may therefore be subject to requirements to reduce emissions of air pollutants. For more information, please visit the CARB Advanced Clean Fleets webpage at https://ww2.arb.ca.gov/our-work/programs/advanced-clean-fleets. 20. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 21. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 22. TERMINATION In the event of the Contractor’s failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 9 product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. City may terminate this Agreement by tendering thirty (30) days written notice to Contractor. Contractor may terminate this Agreement by tendering forty-five (45) days written notice to City. In the event of termination of this Agreement by either party and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 23. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 24. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 25. JURISDICTION AND VENUE This Agreement shall be interpreted in accordance with the laws of the State of California regardless of conflict of laws principles. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. \\\ \\\ Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 10 26. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 27. THIRD PARTY RIGHTS Nothing in this Agreement should be construed to give any rights or benefits to any party other than the City and Contractor. 28. SURVIVAL Section 9 “Indemnification,” Section 15 “Warranties,” and Section 14 “Copyright Acquisition and Waiver of Moral Rights” of this Agreement will survive the expiration or termination of this Agreement for any reason. 29. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. This Agreement may be executed in counterparts. 30. SEVERABILITY If any term or provision of this Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement to give effect to the original intent of the Parties to the greatest extent possible. \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 11 31. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this___________ day of _______________________, 2025. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California Gordon Huether & Partners, Inc., a California corporation By: By: (sign here) SHEILA COBIAN Assistant City Manager As Authorized by the City Manager GORDON HUETHER, CEO (print name/title) ATTEST: By: For SHERRY FREISINGER, City Clerk (sign here) By: DARCY HUETHER, Chief Operating Officer/Secretary Deputy City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: For CINDIE K. McMAHON, City Attorney BY: _____________________________ Deputy / Assistant City Attorney Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 january 30th City Attorney Approved Version 5/22/2024 Page 12 EXHIBIT A SCOPE OF SERVICES AND FEE PROJECT CONTEXT The City of Carlsbad Veterans Memorial Park site is located southeast of the Agua Hedionda Lagoon. It’s bordered on the west and south by Faraday Avenue, to the north by Whitman Way, and to the southeast by the Macario Canyon and Veterans Memorial Park Open Space Preserves. The site is 93.7 acres of which 48 acres are developable. The reminder of the site is protected habitat. The topography of the site is characterized by gentle south to southwest facing slopes. The Parks Department worked with RJM Design firm to develop the Veterans Memorial Park Master Plan which is the basis of design for entitlements and construction documents and reflects the community’s recreational desires while balancing park development in a way that is sensitive to the surrounding natural habitat. The design intent is a family-oriented park with a variety of multi-generational and inclusive amenities that are incorporated into active and passive recreational elements. Honoring veterans for their service, minimizing environmental impacts, and celebrating the site’s natural beauty and views are also integral components. Park facilities and trails are interwoven with open space and the variety of recreational activities and park elements in the master plan are designed to encourage educational benefits and active or passive participation by users of all ages and interests. CONTACT INFORMATION Contractor • Partner/Chief Operating Officer Darcy Huether, 707-255-5954, dt@gordonhuether.com • Sr. Project Manager Jason Scott, 916-837-8009, jscott@gordonhuether.com City • Cultural Arts Manager Craddock Stropes, 442-339-2726, craddock.stropes@carlsbadca.gov • Cultural Arts General Phone, 442-339-2090 VETERANS MEMORIAL PARK Veterans Memorial Park is physically separated into two distinct areas (north and south) which transition through passive uses and natural open space to a prominent memorial element at the high point of the site. Veterans Memorial Park represents an intersection of park and memorial as a space that holds multiple histories. The elegance of the natural landscape is amplified, not interrupted by the man-made forms and structures. This site’s memorial will not be assigned to one perspective but rather to individuals, histories and nature. It will be a place where every visitor becomes a participant, not an observer. In community input workshops and surveys, many commented that Veterans Memorial Park could be linked by a common desire for a space that addresses physical, emotional and environmental health. Veterans Memorial Park will become that critical connection point between land and people, self and others, young and old, seekers and wanderers, and history to the present day. It will truly be a public space that embraces overlapping needs and desires. \\\ \\\ Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 13 This new community resource becomes a place that can be discovered over time, resulting in: • A place where veterans are honored for their sacrifice and pursuit of hope and happiness. • A space where we see ourselves and recognize each other. • A physical and psychological environment that allows us to see the world in a new way. • A space for expression and understanding, as well as physical and mental health. PUBLIC ART TASKS AND DELIVERABLES 1. ARTWORK DESIGN 1.1 Contractor will provide a minimum of three (3) artwork design concepts through an iterative process that incorporates community input, input from city staff on the Veterans Memorial Park Team, and Arts Commission recommendations (“Design Concepts”). After review and approval, the Arts Commission will recommend one of these Design Concepts to the City Council for approval (“Final Design”). If the City Council rejects the Final Design, Contractor may present a second final design within 45 days (“Replacement Design”). City will notify Contractor of the City Council's decision on the Replacement Design. If the Replacement Design is rejected, the Agreement will terminate, Contractor will be compensated as stated in Section 8 of this Exhibit “A,” and all materials will be returned to Contractor. 1.1.1 Ownership of Documents All work product for the Final Design or Replacement Design, whichever is approved by the City Council, produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City (“City Work Product”). In the event this Agreement is terminated, all City Work Product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. For clarity, only the Final Design or Replacement Design, whichever is applicable, are considered City Work Product. Contractor shall own the Design Concepts that are not approved by the City Council. 1.2 The Design Concepts, Final Design, and Replacement Design will specify materials, dimensions, engineering specifications, construction drawings, installation method with engineering calculations, finish, color, and any other relevant information for the artwork, fabrication, and installation (collectively “Design”). The Design will be represented through drawings, renderings, video and/or physical models, which will be shared with the public and during the approval process described in Section 3.1 in this Exhibit “A.” Any construction drawings, permitting, and any tangible elements within the site design related to the artwork, including but not limited to, plaques, interpretive signage, viewfinders, and other similar items, will be the responsibility of the Contractor. Contractor is responsible for providing all necessary supplies, materials and equipment for the Design. 1.3 The Design will account for the following in its specifications: • Include graphics or sculptural artwork that expresses unique attributes of the area’s history, resources or character. • Be appropriate to its proposed setting and be in proper scale with its surroundings. • Be composed of materials that are durable for the projected lifespan of the artwork. • Be designed to minimize ongoing maintenance needs. Specifically, prioritize the Artwork's ease of upkeep, ensure its longevity and condition in a public setting, and sustain a coastal environment. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 14 1.4 Contractor will design the artwork taking into consideration the safety of the public, including, but not limited to, the safety of persons traveling on public rights of way. 1.5 Contractor will design the artwork in compliance with all applicable laws, regulations, and standards, including federal, state, and local laws, as well as regulations of public agencies overseeing the site or artwork. 1.6 Contractor will participate in project meetings with the Veterans Memorial Park Project Team upon request to ensure the Design and future implementation of the artwork complies with all provisions of this Agreement and is compatible with the Veterans Memorial Park construction plans, specifications and schedule. Meetings may be virtual or in-person and will be scheduled by the City in accordance with the Veterans Memorial Park project plan. All meetings will be arranged in advance in writing and agreeable by Parties. 1.7 Contractor will, to the best of Contractor’s artistic ability, design the artwork in a manner that is consistent with the intent and purpose of this Agreement. The Final Design, or if applicable, the Replacement Design will be complete and fully ready for fabrication and installation. 1.8 Upon Design approval pursuant to Section 3.1 in this Exhibit “A,” Contractor must provide City’s Cultural Arts Manager or designee with a tentative schedule for the artwork’s fabrication and installation. 1.9 If Contractor does not elect to fabricate the artwork, Contractor may be required to serve as a consultant during the fabrication of the artwork, providing guidance and expertise as needed, the cost of which will be negotiated in a separate agreement. 2. MAINTENANCE 2.1 The Design shall include all maintenance requirements for the artwork and shall include a cost estimate for each as well as the artwork’s projected lifespan. 3. PUBLIC PRESENTATIONS AND COMMUNITY OUTREACH 3.1 Contractor must present a series of Design Concepts to the city staff Veterans Memorial Park Project Team, Arts Commission (up to twice), City Council (up to twice) for approval. 3.2 Contractor will be available to participate at in-person or virtual community engagement workshops focused on community dialogue and incorporating community input in the Design Concepts. For clarity, if a workshop is scheduled in person, the Contractor must attend in person. Such workshops may include audio and/or on-camera interviews and media opportunities. All community engagement workshops will be coordinated in advance with City's Cultural Arts Manager or designee and agreed upon by Parties. City anticipates between two (2) to five (5) on-site public-facing events to be scheduled. 3.3 City reserves the right to audio and/or video record, reproduce, and distribute any workshop or speaking engagement related to this Agreement as virtual programming. City may retain the recording in its files, may replay the recordings for its employees and the public, including the right to post, replay, or broadcast the recordings on City’s YouTube channel, City’s cable channel, City’s Library Facebook Live account, and other similar City internet-based platforms, and may make the recording available for non- circulation use at its library facilities. City shall not sell the recording. City shall provide a copy of the recording to the Contractor, upon the Contractor’s request. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 15 Without limiting or waiving the foregoing, City agrees to make its best effort to identify Contractor as the designer of the artwork in any/all reproductions, videos, publications and/or representations of the artwork. 3.4 Contractor will be available to participate in any unveiling or opening event activities to be scheduled. City will notify the Contractor in writing at least thirty (30) days in advance of the event. 3.5 Additional optional opportunities may exist for Contractor to collaborate with city staff on community arts education events on a schedule to be mutually agreed upon in advance. 3.6 Upon execution of Agreement, the Contractor agrees to provide a high-resolution image of self (headshot preferred) and written biography (up to 300 words). Images shall be delivered to City's Cultural Arts Manager or designee in electronic form immediately upon the Agreement's execution. 4. CITY’S COMMITMENTS 4.1 City shall make available to Contractor, background information on the site, if requested by Contractor. 4.2 City is responsible for organizing and coordinating all community outreach and engagement activities. 4.3 City will include Contractor in project and construction meetings when it is relevant and timely. 4.4 City shall provide updates to Contractor regarding the Veterans Memorial Park construction progress throughout the development phases. 5. SUBSEQUENT AGREEMENT AND CONTRACTOR’S LICENSE Contingent upon the Carlsbad City Council’s approval and provided the Parties agree on contract terms, Contractor has a right of first refusal with respect to the fabrication and installation of the selected artwork design. In accordance with state law, at the time of the artwork’s fabrication and installation, Contractor must be a licensed contractor or will be responsible for subcontracting the fabrication and installation to a reputable and experienced licensed contractor who shall exercise supervision and control over the artwork’s fabrication and installation. Contractor will be solely responsible for verifying any such subcontractor has a valid appropriate license under California law. 6. SAFE HARBOR: GOVERNMENT CODE SECTION 1097.6 Contractor’s duties and services under this Agreement shall not include preparing or assisting City with any portion of City’s preparation of any applicable request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with City. The City entering this Agreement shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this Project/Service. Contractor’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Contractor will cooperate with the City to ensure that all bidders (if applicable) for a subsequent contract on any subsequent phase of this Project/Service have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by Contractor pursuant to this Agreement. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 16 7. HEALTH & SAFETY During any health-related pandemic, all activities occurring at City facilities, all Parties must adhere to the guidance from the state, county, and local authorities on health and safety protocols. City staff will inform Contractor of the current guidelines prior to their arrival and entering any City facility. Safety protocols may include, but are not limited to, hand washing, temperature testing, requiring a face covering, and maintaining physical distancing of six feet. The safety protocols may be modified at any time due to changing rules, regulations, or circumstances. 8. PAYMENT SCHEDULE Services: Not-to-Exceed $95,000 Contractor is responsible for business license fees, travel and accommodation expenses, insurance, and applicable taxes. Payment Schedule Activity Required First Payment (25% of total) A payment of $23,750 will be paid 30 days after execution of the Agreement. Second Payment (37.5% of total) A payment of $35,625 will be paid after the submission of the initial Design Concept to City Project Team and participation in community engagement workshop(s). Third Payment (25% of total) A payment of $23,750 will be paid after the Contractor provides the Final Design, which requires approval of by City’s Arts Commission. Fourth Payment (12.5% of total) A payment of $11,875 will be paid after the submission of the Final Design or Replacement Design and the receipt of the City Council’s final approval of the Final Design or Replacement Design. In the event the City Council does not approve the Replacement Design, Contractor forfeits the fourth and final payment. *Timelines to be mutually agreed upon by all Parties involved. Any date changes can be authorized by and with written notification to City’s Cultural Arts Manager or designee in writing 30 days before the predetermined date listed above. Invoicing & Payment. All invoices submitted to City shall be sufficiently detailed to include related activities for review and approval by City’s Cultural Arts Manager or designee. Final invoice approval will be completed by City’s Library & Cultural Arts Director or designee. \\\ \\\ \\\ \\\ \\\ \\\ Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 17 ART SITE MAPS Current View of Prospective Site (View from upper plateau, site for public art) Project Description, Veterans Memorial Park Overview The City of Carlsbad Veterans Memorial Park site is located southeast of the Agua Hedionda Lagoon. It’s bordered on the west and south by Faraday Avenue, to the north by Whitman Way, and to the southeast by the Macario Canyon and Veterans Memorial Park Open Space Preserves. The site is 93.7 acres of which 48 acres are developable. The reminder of the site is protected habitat. The topography of the site is characterized by gentle south to southwest facing slopes. The Parks Department worked with RJM Design firm to develop the Veterans Memorial Park Master Plan which is the basis of design for entitlements and construction documents and reflects the community’s recreational desires while balancing park development in a way that is sensitive to the surrounding natural habitat. The park’s permanent public art will be featured prominently on the upper plateau, where visitors can enjoy views of the lagoon, ocean and golf course. As a site-specific piece, the public art will serve as a truly special way to honor and evoke the spirit of those who have served our country. \\\ \\\ \\\ \\\ Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City Attorney Approved Version 5/22/2024 Page 18 Public Art Site Maps **Final design subject to change. (Aerial view, noting Public Art site and Memorial Plaza) Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 City of Can l:iad ------------, ' I I ' I .... _ 0~--0----© ~~ ~ .. ;,..__ @--@-~ e-...... __ _ e--~--0-•----0---0--0---· 0 ~~:::;:~ .. -r- 0 -..,,..-----0-- 0--0----0,.-----0--- 0 .. --... -©M-;<.::-;.-;e.....,._ 0-"'--©·--0-=~--0---0~.-;:::;; ... _ e--0 0-•---· -©·---- 0----0~-,---0--.-----0--- 0 -- 0 ----0--• --@~ .. ::., ........... 0=---0-=...:: 0==-@~::..~-r.::-. 0-----0..-_..- ,,...., __ ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTRINSD WVD PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 10/7/2024 License # 0I72684 (916) 286-0806 23140 Gordon Huether & Partners, Inc. 1821 Monticello Road Napa, CA 94558 41840 27847 112200 A 1,000,000 X X AES124391400 8/6/2024 8/6/2025 100,000 10,000 1,000,000 2,000,000 2,000,000 1,000,000B X X AWFJ50759401 8/6/2024 8/6/2025 C X WSA504116306 5/9/2024 5/9/2025 1,000,000 Y 1,000,000 1,000,000 D Professional Liab.PSM0239794589 10/22/2023 Aggregate 2,000,000 Project # 4609 Gordon Huether & Partners, Inc. and Library & Cultural Arts Department. Public Artwork Design Services for Veterans Memorial Park Public Art Project, Capital Improvement Program The City of Carlsbad, it officials, employees, and volunteers are named as an additional insured per attached. Waiver of Subrogation with respects to General Liability, Auto Liabiity and Worker's Compensation applies per attached forms. City of Carlsbad Library & Cultural Arts Department 1775 Dove Lane Carlsbad, CA 92011 GORDHUE-01 GBIANCO CoreMark Insurance Services Inc. 4430 Duckhorn Drive Sacramento, CA 95834 Kim Rogers krogers@coremarkins.com Associated Industries Insurance Company Allmerica Financial Benefit Insurance Company Insurance Company of the West Lloyds of London X 10/22/2024 X X X X Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 ACORD" I ~ I ~ □ □ ~ ~ ~ □ □ ~ ~ ~ ~ ~ ~ ~ ~ H I I I I I □ I ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s):Location(s) Of Covered Operations All persons or organizations where required by written contract with the Named Insured Any location where you perform work for such additional insured Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1.Your acts or omissions; or 2.The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) desig- nated above. B.With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1.All work, including materials, parts or equip- ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2.That portion of "your work" out of which the injury or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor en- gaged in performing operations for a principal as a part of the same project. POLICY NUMBER: AES1243914 00 COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 10 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 □ ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Additional Insured Person(s) or Organization(s):Location and Description of Completed Operations All persons or organizations where written contract with the Named Insured requires additional insured completed operations coverage. This form does not apply to your work on residential property. Any location where you perform work for such additional insured Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products- completed operations hazard". POLICY NUMBER: AES1243914 00 COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 37 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 □ WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Person Or Organization: All persons or organizations where required by written contract with the Named Insured Information required to complete this Schedule, if not shown above, will be shown in the Declarations. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of Section IV – Conditions: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products-completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. POLICY NUMBER: AES1243914 00 COMMERCIAL GENERAL LIABILITY CG 24 04 05 09 CG 24 04 05 09 © Insurance Services Office, Inc., 2008 Page 1 of 1 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY AND NON-CONTRIBUTING INSURANCE (THIRD-PARTY) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Third Party: All persons or organizations where required by written contract with the Named Insured (Absence of a specifically named Third Party above means that the provisions of this endorsement apply as required by written contractual agreement with any Third Party for whom you are performing work.) Paragraph 4. of SECTION IV: COMMERCIAL GENERAL LIABILITY CONDITIONS is replaced by the following: 4. Other Insurance: With respect to the Third Party shown above, this insurance is primary and non-contributing. Any and all other valid and collectable insurance available to such Third Party in respect of work performed by you under written contractual agreements with said Third Party for loss covered by this policy, shall in no instance be considered as primary, co-insurance, or contributing insurance. Rather, any such other insurance shall be considered excess over and above the insurance provided by this policy. POLICY NUMBER: AES1243914 00 COMMERCIAL GENERAL LIABILITY NX GL 009 08 09 NX GL 009 08 09 Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc., with its permission Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 !&~Hanover ~ Insurance Group. AWFJ507594 5701790 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO COVERAGE BROADENING ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. 1. CANCELLATION EXTENSION Paragraph A. CANCELLATION 2. b. of the COMMON POLICY CONDITIONS is replaced with the following: b. 60 days before the effective date of cancellation if we cancel for any other reason. SECTION I -COVERED AUTOS 2. EMPLOYEE HIRED "AUTOS" Description Of Covered Auto Designation Symbols; Symbol 8 is replaced by the following: 8 = Hired "Autos" Only -Only those "autos" you lease, hire, rent or borrow; including "autos" your employee hires at your direction, for the purpose of conducting your business. This does not include any "auto" you lease, hire, rent, or borrow from any of your "employees" or partners or members of their households. SECTION II -LIABILITY COVERAGE 3. BROADENED NAMED INSURED The following is added to the SECTION II - LIABILITY COVERAGE, Paragraph 1. Who Is An Insured provision: d. Any business entity for which you have a financial interest greater than 50% of the voting stock or otherwise have a controlling interest after the effective date of this policy or that is newly acquired or formed by you during the term of this policy. The coverage provided by this provision is afforded until expiration or termination of this policy, whichever occurs earlier. The coverage provided by this provision does not apply to any business entity described in d. above that qualifies as an insured under any other automobile liability policy issued to that business entity as a named insured or would have been an insured except for the exhaustion of the policy limits or the insolvency of the insurer. The coverage provided by this provision does not apply to "bodily injury" nor "property damage" arising from an accident that occurred prior to your acquiring or forming the business entity described in d. above. Includes copyrighted material of Insurance Services Office, Inc. with its permission, Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 1 of 7 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 4. EMPLOYEES AS INSUREDS The following is added to the SECTION II - LIABILITY COVERAGE, Paragraph 1. Who Is An Insured provision: e. Any employee of yours is an "insured" while using a covered "auto" you do not own, hire or borrow in your business or your personal affairs. 5. SUPPLEMENTARY PAYMENTS The following amends SECTION II - LIABILITY COVERAGE, Paragraph 2. Coverage Extensions provision: Paragraph (2) is replaced by the following: (2) Up to $2500 for cost of bail bonds (including bonds for related traffic law violations) required because of an "accident" we cover. We do not have to furnish these bonds. Paragraph (4) is replaced by the following: (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a day because of time off from work. 6. AMENDED FELLOW EMPLOYEE EXCLUSION The following is added to the SECTION II - LIABILITY COVERAGE, B. Exclusions Paragraph 5. Fellow Employee exclusion: This exclusion does not apply if the "bodily injury" arises from the use of a covered "auto" you own or hire. This coverage is excess over any other collectible insurance SECTION Ill -PHYSICAL DAMAGE COVERAGE. 7. EXPENSE OF RETURNING A STOLEN "AUTO" and SIGN COVERAGE The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, A.1. COVERAGE: d. Expense Of Returning A Stolen "Auto" We will pay for the expense of returning a covered "auto" to you. e. Sign Coverage We will pay for loss to signs, murals, paintings or graphics, as part of equipment, which are displayed on a covered "auto". The most we will pay for "loss" in any one "accident" is the lesser of: 1. The actual cash value of the property as of the time of the "loss"; or 2. The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality; or 3. $2,000. 8. GLASS BREAKAGE DEDUCTIBLE The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, A. COVERAGE paragraph 3. Glass Breakage - Hitting a Bird or Animal -Falling Objects or Missiles: Any deductible shown in the Declarations as applicable to the Includes copyrighted material of Insurance Services Office, Inc. with its permission. Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 2 of 7 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 covered "auto" will not apply to glass breakage if such glass is repaired, rather than replaced. 9. TRANSPORTATION EXPENSE Paragraph 4. Coverage Extension. of SECTION 111 -PHYSICAL DAMAGE COVERAGE, A. COVERAGE is replaced with the following: 4. Coverage Extension We will pay up to $50 per day to a maximum of $1500 for temporary transportation expense incurred by you because of the total theft of a covered "auto" of the private passenger type. We will pay only for those covered "autos" for which you carry either Comprehensive or Specified Causes of Loss Coverage. We will pay for temporary transportation expenses incurred during the period beginning 24 hours after the theft and ending, regardless of the policy s expiration, when the covered "auto" is returned to use or we pay for its "loss". 10. HIRED AUTO PHYSICAL DAMAGE The following is added to SECTION 111 - PHYSICAL DAMAGE COVERAGE, A. COVERAGE: 5. Hired Auto Physical Damage If hired "autos" are covered "autos" for Liability Coverage and if Physical Damage Coverage of Comprehensive, Specified Causes of Loss, or Collision is provided under this Coverage Form for any "auto" you own, then the Physical Damage Coverage(s) provided is extended to "autos" you hire without a driver or your employee hires, without a driver, at your !&~Hanover ~ Insurance Group. AWFJ507594 5701790 direction, for the purpose of conducting your business, for a period of 30 days or less, of li ke kind and use as the "autos" you own, subject to the following: The most we will pay for any one loss is the lesser of the following: a. $50,000 per accident, or b. cash value, or c. the cost of repair, minus the deductible equal to the lowest deductible applicable to any owned "auto" for that coverage. Any deductible shown in the Declarations does not apply to "loss" caused by fire or lightning. Subject to the limit and deductible stated above, we will provide coverage equal to the broadest coverage provided to any covered "auto" you own, that is applicable to the loss. If the loss arises from an accident for which you are legally liable and the lessor incurs an actual financial loss from that accident, we will cover the lessors actual financial loss of use of the hired "auto" for a period of up to seven consecutive days from the date of the accident, subject to a limit of $1,000 per accident. 11. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT COVERAGE The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, A. COVERAGE: 6. Audio, Visual and Data Electronic Equipment Coverage We will pay for "loss" to any electronic equipment that receives Includes copyrighted material of Insurance Services Office, Inc. with its permission. Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 3 of 7 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 or transmits audio, visual or data signals and that is not designed solely for the reproduction of sound. This coverage applies only if the equipment is permanently installed in the covered "auto" at the time of the "loss" or the equipment is removable from a housing unit which is permanently installed in the covered auto at the time of the "loss", and such equipment is designed to be solely operated by use of the power from the "auto s" electrical system, in or upon the covered "auto", including its antennas and other accessories. However, this does not include tapes, records or discs. The exclusions that apply to PHYSICAL DAMAGE COVERAGE, except for the exclusion relating to Audio, Visual and Data Electronic Equipment, also apply to coverage provided herein. In addition, the following exclusions apply: We will not pay , under this coverage, for either any electronic equipment or accessories used with such electronic equipment that is: 1. Necessary for the normal operation of the covered "auto" or the monitoring of the covered "auto s" operating system; or 2. Both: a. An integral part of the same unit housing any sound reproducing equipment designed solely for the reproduction of sound if the sound reproducing equipment is permanently installed in the covered "auto", and b. Permanently installed in the opening of the dash or console normally used by the manufacturer for the installation of a radio. With respect to coverage herein, the LIMIT OF INSURANCE provision of PHYSICAL DAMAGE COVERAGE is replaced by the following: 1. The most we will pay for all "loss" to audio, visual or data electronic equipment and any accessories used with this equipment as a result of any one "accident" is the lesser of a. The actual cash value of the damaged or stolen property as of the time of the "loss"; or b. The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality; or C. $500. 2. An adjustment for depreciation and physical condition will be made in determining actual cash value at the time of the "loss". 3. Deductibles applicable to PHYSICAL DAMAGE COVERAGE, do not apply to this Audio, Visual and Data Electronic Equipment Coverage. If there is other coverage provided by this policy for audio, visual and data electronic equipment, the coverage provided herein is Includes copyrighted material of Insurance Services Office, Inc. with its permission. Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 4 of 7 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 excess. However, you may elect to apply the limit or any portion thereof of coverage provided herein to pay any deductible that is applicable under the provisions of the other coverage. 12. RENTAL REIMBURSEMENT and MATERIAL TRANSFER EXPENSE The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, A. COVERAGE: 7. Rental Reimbursement and Material Transfer Expense This coverage provides only those Physical Damage Coverages where a premium is shown in the Declarations. It applies only to a covered "auto" described or designated to which the Physical Damage Coverages apply. We will pay for auto rental expenses and the expenses, incurred by you because of "loss" to a covered "auto", to remove and transfer your materials and equipment from the covered "auto" . Payment applies in addition to the otherwise applicable amount of each coverage you have on a covered "auto". No deductibles apply to this coverage. We will pay only for those auto rental expenses incurred during the policy period beginning 24 hours after the "loss" and ending, regardless of the policy s expiration, with the lesser of the following number of days: 1. The number of days reasonably required to repair or replace the !&~Hanover ~ Insurance Group. AWFJ507594 5701790 covered"auto". If loss is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto" and transport it to a repair shop. 2. 60 days. Our payment is limited to the lesser of the following amounts: 1. Necessary and actual expenses incurred, including loss of use. 2. $3000. This auto rental expense coverage does not apply while there are spare or reserve "autos" available to you for your operations. If "loss" results from the total theft of a covered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided for under the SECTION Ill -PHYSICAL DAMAGE COVERAGE, A. 4. Coverage Extension. 13. AIRBAG COVERAGE The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, B. Exclusions, paragraph 3. The portion of this exclusion relating to mechanical or electrical breakdown does not apply to the accidental discharge of an airbag. This coverage is excess of other collectible insurance or warranty. No deductible applies to this Airbag Coverage. Includes copyrighted material of Insurance Services Office, Inc. with its permission. Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 5 of 7 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 14. AUTO LOAN PHYSICAL DAMAGE EXTENSION The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance provision: When a "loss" results in a total loss to a covered auto you own for which a Loss Payee is designated in this policy, the most we will pay for "loss" in any one "accident" is the greater of: 1. The actual cash value of the damaged or stolen property as of the time of the "loss"; or 2. The outstanding balance of the initial loan, less any amounts for taxes, overdue payments, overdue payment charges, penalties, interest , any charges for early termination of the loan, costs for Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan, and carry-over balances from previous loans. 15. AUTO LEASE PHYSICAL DAMAGE EXTENSION The following is added to SECTION Ill - PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance provision: If, because of damage, destruction or theft of a covered "auto", which is a long-term leased "auto", the lease agreement between you and the lessor is terminated, "we" will pay the difference between the amount paid under paragraph C. LIMIT OF INSURANCE 1. or 2. and the amount due at the time of "loss" under the terms of the lease agreement applicable to the leased "auto" which you are required to pay: less any fees to dispose of the auto; any overdue payments; financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; security deposits not refunded by the lessor; cost for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan; and carry over balances from previous leases. This coverage applies only to the initial lease for the covered "auto" which has not previously been leased. This coverage is excess over all other collectible insurance. SECTION IV -CONDITIONS 16. DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS The following is added to SECTION IV - BUSINESS AUTO CONDITIONS, A. Loss Conditions, 2. Duties In The Event Of Accident, Claim, Suit Or Loss: d. Knowledge of any "accident", claim, "suit" or "loss" will be deemed knowledge by you when notice of such "accident", claim, "suit" or "loss" has been received by: (1) You, if you are an individual; (2) Any partner or insurance manager if you are a partnership; or (3) An executive officer or insurance manager if you are a corporation. 17. BLANKET WAIVER OF SUBROGATION Paragraph 5. Transfer Of Rights Of Recovery Against Others To Us, SECTION IV -BUSINESS AUTO CONDITIONS, A. Loss Conditions is replaced by the following: Includes copyrighted material of Insurance Services Office, Inc. with its permission. Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 6 of 7 Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 5. Transfer Of Rights Of Recovery Against Others To Us If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, which have not been waived through the execution of an "insured contract", written agreement, or permit, prior to the "accident" or "loss" giving rise to the payment, those rights to recover damages from another are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after the "accident" or "loss'' to impair them. 18. UNINTENTIONAL FAILURE TO DISCLOSE INFORMATION The following is added to SECTION IV BUSINESS AUTO CONDITIONS. B. General Conditions, paragraph 2. Concealment, Misrepresentation Or Fraud: Your unintentional error in disclosing, or failure to disclose, any material fact existing after the effective date of this Coverage Form shall not prejudice your rights under this Coverage Form. However, this provision does not affect our right to collect additional premium or exercise our right of cancellation or nonrenewal. !&~Hanover ~ Insurance Group. 19. HIRED AUTO -WORLDWIDE COVERAGE AWFJ507594 5701790 The following is added to SECTION IV - Business Auto Conditions, B. General Conditions, paragraph 7. Policy Period, Coverage Territory provision: e. Outside the coverage territory described in a., b., c., and d. above for an "accident" or "loss" resulting from the use of a covered "auto" you hire, without a driver, or your employee hires without a driver, at your direction, for the purpose of conducting your business, for a period of 30 days or less, provided the suit is brought within The United States of America or its territories or possessions. SECTION V -DEFINITIONS 20. MENTAL ANGUISH Paragraph C. "Bodily injury", SECTION V - DEFINITIONS is replaced by the following: C. "Bodily injury" means bodily injury, sickness or disease sustained by a person including death or mental anguish resulting from any of these. Includes copyrighted material of Insurance Services Office, Inc. with its permission. Copyright, Insurance Services Office, Inc., 1996 461-0155 (9-97) Page 7 of 7 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 05-09-24 Policy No. WSA 5041163 06 Endorsement No. Insured GORDON HUETHER & PARTNERS INC Premium $ INCL. Insurance Company INSURANCE COMPANY OF THE WEST Countersigned By WC 00 03 13 (Ed. 4-84) 1983 National Council on Compensation Insurance. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule ANY PERSON OR ORGANIZATION FOR WHOM THE NAMED INSURED IS REQUIRED UNDER WRITTEN CONTRACT TO FURNISH THIS WAIVER, FOR NEW YORK OPERATIONS ONLY. INSURED Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 © WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: (Name and Department) (Date) Proposed modification(s) to the __________________ requirement(s) for (Type of insurance) (Name of contract) Reduce coverage to the amount of: $ . Waive coverage Other: FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) Significance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain] Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable] Contract Amount/Term of Contract: $ . Work will be completed over a period of . Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. Other (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request): Approved by Risk Manager for this contract only: (Signature) (Date) Craddock Stropes, Library & Cultural Arts 10/08/2024 automobile, CGL Gordon Huether & Associates n 1,000,000 CGL $1,000,000 per occurrence n NTE $95,000 2 years n PSALCA-24076CA Reduced due to minimal risk. Docusign Envelope ID: 2DD84FF4-0C56-4AD7-A81D-FF59F3D1D470 1/27/2025 □ □ □ □ □